A Vatican inquiry into the Order of Malta? Legally speaking, this makes no sense

Vatican Secretary of State Cardinal Pietro Parolin with the Grand Master of the Sovereign Order of Malta, Fra' Matthew Festing, in June (PA)

The Order of Malta, like the Vatican, is a sovereign body. For one to investigate the other is simply incoherent

Imagine that the UK Foreign Office recommended the creation of a commission to investigate the dismissal of the Canadian Finance Minister. It would, to say the least, raise some legal questions. But that is pretty much what the Vatican’s Secretariat of State did shortly before Christmas, when it suggested the Pope appoint a team to investigate and report on the sacking of the Grand Chancellor of the Order of Malta.

There is certainly some controversy about the recent dismissal of Albrecht von Boeselager as Grand Chancellor. The man himself has apparently claimed he was ousted because he was thought to be a “liberal Catholic”; but the Grand Master of the order, Fra’ Matthew Festing, has said it concerned “an extremely grave and untenable situation [becoming] apparent” regarding von Boeslager’s previous work as Grand Hospitaller of the Order.

None of this explains why the Pope has opened an investigative commission. The Order of Malta is, for sure, a Catholic organisation. But it is unique in that it is totally sovereign as regards its governance. The Grand Master is not appointed by the Pope, but elected by the Order’s Council Complete of State. Upon his election, the Grand Master merely informs the Pope of the fact of his election, before taking his oath of office (Constitutional Charter of the Order, art. 13 §3).

While the Order recognizes the authority of the Pope as head of the Church, it is not itself a subject of the Holy See as a governing body. Instead, the Order has diplomatic relations with the Vatican, including a formal representative, the same as any other sovereign nation. Indeed, while the Sovereign Military Order of Malta may not be military or located on the island of Malta, it is very much sovereign – it has full diplomatic relations with more than 100 countries, and the same permanent observer status at the United Nations as the Holy See.

The Order may be Catholic, but its Constitutional Charter specifically states:

The religious nature of the Order does not prejudice the exercise of sovereign prerogatives pertaining to the Order in so far as it is recognized by States as a subject of international law.

In other words, they don’t answer to the Vatican, full stop. In this light, the commission set up by Pope Francis to formally investigate von Boeselager’s dismissal is legally incoherent – so why did he do it?

It seems the Pope was acting on the advice of his own Secretariat of State. This is certainly the understanding of the Order, which in a statement called the creation of the commission “the result of a misunderstanding by the Secretariat of State of the Holy See”. This implied threat to the Order’s self-governance led to the Grand Master “respectfully clarifying the situation … in a letter to the Supreme Pontiff, laying out the reasons why the suggestions made by the Secretariat of State were unacceptable.”

While the Pope might reasonably be curious about the circumstances surrounding the firing of the Grand Chancellor of the Order, it is hard to imagine how the Secretariat of State could possibly convince itself it has the power to investigate or intervene in the internal governance of a sovereign entity with which it has diplomatic relations.

It’s been suggested that the Vatican needs to investigate Cardinal Burke’s role, since he is Patron of the Order, and the Pope’s representative. But Cardinal Burke’s position is beside the point here.

Legally speaking, the Grand Master was entirely within his power, according to the governing laws of the Order, to compel the resignation of von Boeselager under his promise of obedience. The only requirements for him to do so are, first, that it be done for a serious and just cause and, secondly, in the presence of two witnesses (Code of the Order, art. 63 §2).

It was for this reason that the Grand Commander and Cardinal Patron were present at the meeting between von Boeselager and the Grand Master. Given its seriousness and its expected outcome, it was entirely correct that the Pope’s representative be invited to be a witness. Following Boeselager’s breach of obedience by not resigning as directed, it was the Grand Commander, with the backing of all the relevant internal officials of the Order (not the Cardinal Patron) who initiated the process for his dismissal. In sum, this was an internal matter handled according to the correct process, and one which did not involve Cardinal Burke, except as a passive witness.

Yet the Secretariat of State shows no signs of backing down. As recently as this weekend, Cardinal Parolin, the Vatican Secretary of State, was reported as saying the Order was in an “unprecedented crisis” and that the investigation would go ahead, “and then we will see”.

Quite what Cardinal Parolin hopes to achieve by this move is as unclear as his legal footing, but forcing through a Vatican investigation could prove a very dangerous manoeuvre. The Order of Malta has exactly the same standing in international law as the Holy See itself; by essentially denying the Order’s sovereignty, the Vatican Secretariat of State is undercutting its own diplomatic legitimacy.